CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM Present Sri. Santhosh Kesavanath P. President Smt. Bindhu M. Thomas, Member Sri. K.N. Radhakrishnan, Member CC No. 163/2006 Friday, the 21st day of May, 2010 Petitioner : K.P Abootty Palathinkal House, Market Road, Kottayam. (By Adv. P.AMathew) Opposite parties : 1) Issac Thomas, Thoufeequ Building, Market Road, Kottayam. 2) M/s. Ullalttil Agencies, Thoufeequ Building, Market Road, Kottayam. 3) Jacob Thomas, Managing Partner, Ullattil House, Thoufeequ Building, Market Road, Kottayam. (By Adv. George Itty. T) O R D E R Sri. Santhosh Kesavanat. P., President. Case of the petitioner, filed on 11..8..2006 is as follows: Petitioner’s son T.K. Nazar availed a loan of Rs. 25,000/- from the first opposite party on 20..7..91. After time of availing the loan petitioner furnished as security to the first opposite party a signed blank Cheque from his S.B account with the Corporation Bank, Kottayam. Title deed of 24 cent of land owned by his wife Fathima Beevi, covered by sale deeds 46/57 and 461/57 respectively, release deed No. 113/70 and power of attorney No. 107/60 executed by petitioners wife in favour of the petitioner to manage properties owned by her. Petitioner’s son T.K. Nazar repaid the principal amount and -2- interest, to be paid, by in the loan account, petitioner demanded for return of security documents entrusted by him. First opposite party stating that security documents are keeping bank locker promised to return them without delay. When petitioner demanded for return of documents opposite parties fabricated blank Cheques given to them by the petitioner claiming Rs. 429279.70 and alleging that it has been issued to Ullalttil Financers by the petitioner and his wife on 12..9..94, for the discharge of loan of Rs. 2,50,000/-, availed by them from second opposite party. One Jacob Thomas a partner of the second opposite party filed CC No. 34/95 before the CJM Court, Kottayam against the petitioner for an offence under section 138 of NI Act. Petitioners contention in CC No. 34/95 was that Cheque relied on is a fabricated Cheque. C.J.M Court Kottayam, after trial, acquitted the petitioner by its judgment dated 10..8.2000 and found that Cheque was fabricated Cheque and it does not have consideration. Opposite parties filed an appeal against the judgment before the Hon’ble High Court of Kerala and same was dismissed. Petitioner issued a notice on 1..10..2005 and 23..1..2006 demanding the opposite parties for return of title deeds and power of attorney entrusted with the first opposite party in the loan account of T.K. Nazar. Opposite parties replied stating that loan was actually availed by petitioner and his wife for for Rs. 2,50,000/-. They admitted deposit of only sale deed No. 461/57 and power of attorney No. 107/60. According to them on the security of above documents petitioner’s son T.K Nazar availed a loan of Rs. 2 lakhs and petitioner’s son have not discharged liability on the loan availed by them till date and they are entitled to the documents retain. According to the petitioner act of the opposite party is a clear deficiency in service. So, petitioner prays for an order directing the opposite party to return the title deed deposited and also he claims Rs. 1,00,.000/- as compensation. Opposite party one entered appearance and raised a contention that Ullattil agencies has not made a party so the petitioner filed IA 385/07 as per the order Dtd: 12..9..2007 Ullattil agencies was made imp leaded as second opposite party. During trial first opposite party died and 3rd opposite party imp leaded as per order in IA 577/09 Dtd: 12..10..2009. First and second opposite parties filed separate version contenting that the petition is not maintainable. According to the opposite party forum has no jurisdiction to -3- try the case and complainant is not a consumer as defined under Consumer Protection Act. Opposite party contented that petitioner and his wife availed a loan of Rs. 2,50,000/- from second opposite party on 20..7..91. In order to secure the loan wife of the petitioner, Fathima Beevi deposited a title deed No. 461/1957 and power of attorney 107/1960 by way of equitable mortgage, with the intent to create security their on . Towards repayment of the loan transaction petitioner issued a Cheque for Rs. 4,29,279.70, drawn on the Corporation Bank, Kottayam, in favour of Ullattil Agencies, Kottayam. On dis honour of the Cheque a complaint as CC 34/95 was filed by the opposite party before the CJM Court, Kottayam and against the judgment appeal is pending. Petitioner’s contention that loan was availed to the petitioner’s son is denied by the opposite party. According to the opposite party loan was availed by the petitioner and his wife Fathima Beevi. Towards repayment petitioner issued Cheque. Petitioner has been repaid the amount. According to the opposite party petitioner has not deposited sale deed No. 460/1957 and release deed No. 1134/1970. Opposite party further contented that son of the petitioner T.K. Nazar availed a loan from Jacob Thomas, partner of second opposite party during 2001 on the security of the document deposited by the petitioner and his wife. So, far T.K Nazar has not repaid the amount borrowed from Jacob Thomas and settled the account. The first opposite party has been given evidence in 34/94 as witness is false. Said complaint was filed by second opposite party Ullattil agencies and partner of the said firm Jacob Thomas adduced evidence. Son of the petitioner T.K Nazar borrowed money from Jacob Thomas after the disposal of CC No. 34/94 . So far, JACOB Thomas has not taken any steps to recover the amount. Petitioner and his wife deposited the title deeds and the power of attorney with the second opposite party as a security for the loan availed by them from the said firm. Further the son of the petitioner borrowed amount from the partner of the firm Ullattil agencies on the security of the document thus deposited. So, without repaying the entire amount petitioner is not entitled to demand return of document. According to the opposite party there is no deficiency in service on their part and pray for dismissal of the petition with their costs. -4- Points for determinations are: i) Whether there is maintainable or not? ii) Whether there is deficiency in service on the part of the opposite party? iii) Relief and costs. Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A5 documents on the side of the petitioner. Point No. 1 Opposite party raised a contention with regard to maintainability of the petition. So that has to be decided first. According to the opposite party complaint is not a ‘consumer dispute’ and complainant is not a “consumer”. “Complaint” in consumer Protection Act 1986 is defined in S-2(b) as any allegation in writing made by a complainant that the service hired or availed suffers from deficiency. ‘Service’ As per S-2 (o) of Consumer Protection Act 1986 means service of any description which is made available to potential user and includes facilities in connection with banking, financing, etc. etc. “deficiency” is defined under S-2(g) of the Consumer Protection Act 1986 as any fault, imperfection, shortcoming or inadequacy in the manner of performance. Admittedly the dispute between the petitioner and opposite party is with regard to deficiency in service in not returning the documents which were entrusted to the opposite party by the petitioner for availing a loan. We are of the view that the dispute in hand is a consumer dispute. Petitioner is a consumer and petition is maintainable before the Forum. Point No. 1 is found accordingly. Point No. 2 In order to adjudicate whether there is any deficiency in service First question to be looked in to is whether the petitioner, his wife or either of them, or the son of the petitioner availed any loan from the opposite parties. Admittedly opposite parties are money lenders doing money lending business. So the opposite party have a bounden duty to prove each and every loan transactions, availing of loan etc. by producing account book ledger, documents etc. Opposite parties definite case is that loan was actually availed by the petitioner and his wife loan amount was Rs. 2,50,000/-, in that loan transaction petitioner deposited only sale deed No. 461/57 and power of Attorney -5- No. 107/60. On security of the above documents petitioners son T.K. Nazar also availed a loan of Rs. 2,00,000/- from the opposite party and said T.K Nazar have not discharged the liability till date. Opposite party in their version contented that petitioners son Sri. T.K. Nazar availed a loan for an amount of Rs. 2,50,000/- from the Jacob Thomas (a partner of 2nd opposite party), 3rd opposite party in this petition, Deposition of the 3rd opposite party before the Chief Judicial Magistrate in CC No. 34/95 is produced and the same is marked as Ext. A1 judgment acquitting the petitioner in CC 34/95 is produced and the same is marked as Ext. A2. Opposite party 3 who was examined as PW1 deposed that petitioner had obtained a loan of Rs. 2,00,000/- from the opposite party firm towards discharge of the liability, as per loan, petitioner issued a Cheque for Rs. 4,29,279.70. The page No. 7 of A1 he deposed that opposite party paid the money on the agreement that amount should be paid at 24% per annum with quarterly rest. In our view the case of the petitioner that 3rd opposite party availed another loan amounting Rs. 2,00,000/- to petition’s son is not believable because. Amount due on the existing loan at that time will be more than 25lakhs. Further more 3rd opposite party in Ext. A1 seen deposed that he has not initiated any legal action for recovery of amount.. Opposite party has no definite case regarding the amount paid by them to the petitioner, his wife and son. In the version it is stated that amount paid to the petitioner is Rs. 2,50,000/-. In Ext. A1 opposite party 3 deposed that (page No. 3 and 7 of deposition) loan amount paid to the petitioner is Rs. 2,00,000/-. With regard to the date of payment of loan there are two versions in the version filed by the opposite party. In para 5 of the version date is 20..7..91 and in para 13 it is 12..7..91. In A1 deposition date of payment of loan is 5..6..91. In our view there is absolutely no evidence to support the case of the opposite party to prove that they paid loan to the petitioner, his wife or his son as alleged. Further more Ext. A2 judgment in CC-341/95 show that opposite party’s case is false hood. In our view the next question to be decided is whether the petitioner deposited with the opposite parties (1) Sale Deed No. 460/57, (2) sale deed No. 461/57 (3) Release Deed No. 1134/70 and power of attorney No. 107/60. 3rd opposite party in A1 deposition (page 18) admitted that during loan transactions opposite parties used to accept title deeds as security. Petitioner case is that he deposited the 4 documents for -6- granting loan of Rs. 25,000/- to his son Nazar. 3rd opposite party examined as DW1 admitted that documents offered by the petitioner as security in loan granted to him is the title deed of the 24 cents of property. Owned by the petitioners wife in Sy. No. 8/4/A & B of Kottayam Village. Opposite party admits the entrustment of sale deed No. 461/57 and Power of Attorney 107/60. Admittedly the petitioners wife got absolute ownership over the property covered by sale deed No. 461/57 and by other deeds. So we infer that the case of the petitioner is true. Opposite party has a case that petitioner’s son Nazar also availed a loan of Rs. 2,00,000/- on the security of the documents entrusted by the petitioner. Opposite party 3 in Ext. A1 deposition deposed that T.K Nazar availed a loan of Rs. 25,000/- on 20..7..91 and he repaid the loan with interest (on page 11 and 14). Further more if Rs. 2,00,000/- was paid to T.K Nazar, as alleged on the same security, opposite party has a bounden duty to obtain an agreement from the petitioner for treating the title deeds deposited by him in his loan account also as security in the loan granted to his son. Admittedly there was litigation between the parties from 1995 onwards and the relation ship between them was not cordial so in our view the case of opposite party that in 2001 they granted a loan of Rs. 2,00,000/- to the petitioner is not at all believable for a moment. The case of the opposite party that they granted loan to petitioner his wife Fathima Beevi is also not believable. Admittedly petitioners wife Fathima Beevi is the owner of the properties offered as security. Opposite party admitted that the power of attorney No. 107/60 is in their possession. If the loan has been availed of by Fathima Beevi either jointly with the petitioner or by herself. Probably Attorney executed by her in favour of the petitioner would not have been deposited along with the title deeds. According to opposite party the title deed has been deposited by the petitioner and not by his wife. The probabilities and available evidence lead us to a conclusion that case of the opposite party is naked false hood. In our view based on the finding discussed above the case of the petitioner that he entrusted with the 1st opposite party. Sale deed No. 460/57, 461/57 of S.R.O Kottayam, release deed No. 1134/70 of SRO Kottayam and Power of Attorney No. 107/60 of S.R.O Talaserry is believable. Act of the opposite party in not returning the document is a clear deficiency in service. According to the -7- petitioner the building situated covered under the documents entrusted with the opposite party worth Rs. 2.5 crores and he wanted the documents for availing a loan from the bank to enable his son to carry on business and he suffered heavy loss. In our view without saying what had occurred caused much mental pain and sufferings to the petitioner and is to be adequately compensated. So point No. 2 is found accordingly. Point No. 3 In view of the finding in point No. 2 petition is allowed and the petitioner is entitled for the reliefs sought for . In the result opposite party is ordered to return the documents. 1. a) Sale deed No. 460/57 of SRO, Kottayam b) Sale Deed No. 461/57 c) Release Deed No. 1134/70 of SRO, Kottayam. d) Power of Attorney No. 107/60 of SRO, Thalassery. If documents are not returned as ordered opposite pay shall pay an amount of Rs. 50,000/- as compensation for the deficiency committed. 2. For the loss and sufferings of the petitioner we order the opposite party to pay an amount of Rs. 50,000/- to the petitioner. 3. Opposite party is ordered to pay an amount of Rs. 5,000/- as cost of the proceedings. Order shall be complied with within one month of receipt of order. If the order is not complied petitioner is entitled for 9% interest for the award amount till its realization. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 21st day of May, 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N. Radhakrishnan, Member Sd/- APPENDIX Documents for the Petitioner Ext. A1: Copy of deposition Jacob Thomas in CC 34/95. Ext. A2: Copy of Judgment in CC 34/95 of CJM Kottayam Ext. A3: Copy of lawyers notice Dtd: 1..10..2008 Ext. A4: Copy of lawyers notice Dtd: 23..1..2006 Ext. A5: Copy of lawyers notice Dtd: 10..10..2008. By Order, Senior Superintendent amp/ 6cs
| | HONORABLE Bindhu M Thomas, Member | HONORABLE Santhosh Kesava Nath P, PRESIDENT | HONORABLE K.N Radhakrishnan, Member | | 
